Drill v. Commonwealth

459 A.2d 1322, 74 Pa. Commw. 262, 1983 Pa. Commw. LEXIS 1611

• Court: Commonwealth Court of Pennsylvania
• Decided: May 11, 1983
• Docket: Appeal, No. 59 C.D. 1981
• Status: Published

Opinion

Opinion by

Judge Craig,

Seeking a remand for the recalculation of points assessed against his driving record, Burton F. Drill appeals from a Montgomery County Common Pleas Court order which affirmed the Secretary of Transportation’s decision to suspend Mr. Drill’s operating privileges for sixty-five days.

According to the undisputed facts of record, Mr. Drill committed four driving violations from May 17, 1979 to March 2,1980, as follows:

Date of Violation Date of Oonviction Violation Section Violated Action Tahen by Department

5/17/79 6/29/79 Traffic. Signal Violation 75 Pa. O. S. §3112(a) (i) Point Letter +3

2/1/80 3/18/80 Improper Turning Around 75 Pa. C. S. §3332 Point Letter +3

2/9/80 2/14/80 Speeding 75 Pa. O. S. §3362 Point Letter +4

3/2/80 Speeding 75 Pa. O. S. §3362 Point Letter +3

TOTAL POINTS +13

Apparently, ¡after the Department of Transportation (DOT) received certification of'Mr. Drill’s February 14,1980 conviction, it notified him on July 16,1980 that he would have to submit to a special examination under ¡section 1538(a) of the Vehicle Code, 75 Pa. C. S. §1538(a),¹ having accumulated .six or more points on his record. According to the common pleas court, Mr. Drill passed the examination on September 9,1980.²

Although there is no evidence of record to indicate when DOT received notification of Mr. Drill’s March 2 and March 18 convictions, the record reveals .that, by order of September 10, 1980, DOT notified Mr. Drill that it would suspend his ¡operating privileges as mandated by .section 1539 of the Vehicle Code,³ -because the February 1, 1980 violation brought his total point accumulation to thirteen.

Mr. Drill contends ¡that, because he passed the special examination on September 9, 1980, DOT .should have removed two -points from his driving record under section 1538 as of September 16,1980, when the Commonwealth -sent notice ¡of his license suspension. Arguing that DOT failed to -act with due diligence, he contends that, at most, he accumulated only eleven points at the time of suspension :and ¡should have his operating privileges suspended for only fifty-five d-ays. We disagree.

Our well-settled interpretation of section 1539(a) is that points are assessed at the time of ¡the violation rather than at the time of conviction. Bureau of Traffic Safety v. Hafer, 54 Pa. Commonwealth Ct. 310, 421 A.2d 492 (1980). Mr. Drill does not deny -that he committed all four violations by March 2,1980; accordingly, all thirteen points vested before .the date of his ,spe.ci-al examination. Therefore, passing the examination in September did not -affect Mr. Drill’s .suspension because he ¡successfully completed -the test only after the date of the violation which gave him a thirteen-point total. Bureau of Traffic Safety v. Sherwood, 51 Pa. Commonwealth Ct. 117, 414 A.2d 151 (1980); Bureau of Traffic Safety v. Sheets, 49 Pa. Commonwealth Ct. 175, 410 A.2d 1295 (1980).⁴

Accordingly, we affirm.

Order

Now, May 11,1983, Hie order of the Court of Common Pleas of Montgomery County, Nó. 80-17269, is affirmed.

1 Section 1538(a) provides, in pertinent part:

When any person’s record for .the first time shows as many as six points, the department shall require the person to attend an approved driver improvement school or undergo a special examination and shall so notify the person in writing. Upon . . . passing the special examination, two points shall be removed from the person’s record.

2 In its brief, DOT suggests that Mr. Drill actually passed the examination on September 10, 1980.

3 75 Pa. C. S. §1539 provides for (the mandatory suspension of a driver’s -license upon an accumulation of eleven points or more, five days for each p-oint.

4 We find Mr. Drill’s due diligence, -argument unpersuasive. Section 1551 of the Vehicle Code, 75 Pa. C. S. §1551, requires that DOT notify each person o-f Ms license suspension within six months following a conviction which -results in the addition of points sufficient to cause the suspension. Mr. Dri-ll was convicted o-f his fourth offense -on March 18, 1980; he received notification of his suspension on September 16, 1980.

We may not consider Mr. Drill’s undue hardship argument because the suspension imposed here was mandatory. See Virnelson Motor Operator License Case, 212 Pa. Superior Ct. 359, 243 A.2d 464 (1968).